Barbaric Yawp: Universal Spectrum Access and the Public Trust Doctrine

-- By GerryMoody - 27 Feb 2008

“I sound my barbaric yawp over the roofs of the world.” Walt Whitman, Leaves of Grass

The public trust doctrine could invalidate the Federal Communication Commission’s (FCC) allocation of electromagnetic spectrum to private companies. In essence, the public trust doctrine forbids states from transferring to private parties any property or natural resource that the public has an inherent right to access and use. This paper argues that the doctrine should apply to the federal regulation of spectrum, especially as spectrum auctions further entrench the broadcast companies’ property-like interests in exclusive licenses to use particular frequencies. However, as discussed below, there are impediments to bringing a claim under public trust doctrine. This might explain why few commentators have discussed the approach. If successful, it could help to create a spectrum commons that would provide access to anyone who complies with technical standards and uses an unlicensed device. If unsuccessful, a failed attempt to apply the doctrine would at least contribute to debates concerning spectrum allocation.

Public Trust Doctrine and Broadcast Spectrum

The public trust doctrine in American jurisprudence has many antecedents, such as the Roman Institutes of Justinian, most of which forbade private ownership of navigable waters. In the landmark 1892 decision of Illinois Central Railroad v. Illinois, the United States Supreme Court voided the transfer of submerged lands to a railroad company by holding that the State of Illinois was incapable of transferring to private parties what it held in trust for the people of the state. In 1970, an article by Joseph Sax encouraged courts to apply the public trust doctrine to resources other than water. Controversially, courts have since applied it to state parks.

While public trust jurisprudence is somewhat amorphous, the history of electromagnetic spectrum regulation is clear. In 1906, Reginald Fessenden made a Christmas Eve broadcast to ships off the Massachusetts coast. Among the first to broadcast sound, Fesseden claimed a frequency on a first-in-time principle. As broadcast capabilities expanded, the interference caused by competing broadcast stations created a cacophony of competing voices necessitating federal regulation. The government first asserted control over the spectrum in the Radio Act of 1927, which was updated by the Communications Act of 1934. The 1934 Act codified two of the public trust doctrine’s main principles: a prohibition on private ownership and a public access requirement.

The core public values that make the public trust doctrine applicable to navigable water include the rights to travel, trade, and fish. For spectrum, that value is free speech. The overwhelming importance of this value is seen in the fact that the federal government may not regulate speech absent a very strong justification. Indeed, the Supreme Court has applied a less rigorous standard of First Amendment review to broadcast spectrum allocation on the basis of a scarcity rationale. This enables the FCC to decide who receives broadcast licenses without running up against the prohibition on prior restraints.

Broadcast “Trustees” Are No Longer Necessary

Under the public trust doctrine described in Illinois Central Railroad, exclusive licenses would be permissible if necessary to avoid cacophony. Justice Story wrote that state control over the submerged lands could not be relinquished, “except as to such parcels as are used in promoting the interests of the public therein.” According to some commentators, the scarcity rationale is no longer viable after the development of spread spectrum. If all citizens may use and access the spectrum without interference, the broadcast “trustees” are no longer needed to promote the public interest and exclusive licenses to use the broadcast spectrum should be revoked.

By not promoting universal access, the federal government is unnecessarily abridging the right to speak in violation of the First Amendment. To give an example, in Silent Theft, David Boiller documented how the FCC in 2000 received 1,200 applications from schools, church and community organizations for the right to use low-power FM radio stations. The broadcasting lobby (including National Public Radio) responded by convincing the government to cut the number of FM radio stations by 75 percent. The public trust doctrine could ensure that these private parties do not interfere with the public’s right to access the spectrum.

Great in Theory, Bad in Practice

While it seems tailor-made for the cause, a claim under the public trust doctrine might fail for several reasons. First, the doctrine is grounded in state law, which is preempted by federal regulation. Although some commentators have attempted to ground it in federal law, it is not clear that one can bring a federal claim under the public trust doctrine. Second, courts would have to make a conceptual leap from navigable water to electromagnetic spectrum. Of course, some courts have already made a leap from water to state parks. But, because the public trust doctrine is controversial even for water rights, critics would inevitably decry its use here as judicial activism. Third, in FCC v. Sanders Brothers Radio Station, the Supreme Court unequivocally stated that spectrum licenses do not confer property rights. The public trust doctrine forbids certain property transfers, but is inapplicable to licensing regulation.

This third problem might be easiest to overcome. Even if licenses are not formal property rights, spectrum auctions have encouraged large capital investments that foresee long realization horizons. Additionally, under the 1996 Telecommunications Act, eligibility for advanced television licenses is limited to broadcasters who already possess a license. Finally, most licenses are routinely renewed. This suggests that broadcasters have effectively received property interests with their licenses, which means the public trust doctrine might not be presumptively inapplicable.

Conclusion

Although these impediments make the success of a public trust doctrine challenge unlikely, it might still make sense to bring a case. The doctrine’s populist rhetorical power could, at least, help generate opposition to a governmental regime that gives to the few exclusive access to a natural resource that technologically can and should be enjoyed by the many.

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